District Court Rules

ORDER 49

HEARING OF CIVIL PROCEEDINGS

1 — EVIDENCE

1 Oral evidence

1. (1) Unless otherwise agreed in writing by all of the parties to the proceeding, and subject to these Rules and the law of evidence, witnesses at the trial of any claim must be examined orally on oath in open Court.

(2) Despite sub-rule (1), the Court may at any time for such reasons as it thinks right order that a particular fact may be proved by affidavit, or that the affidavit of a witness may be read at the hearing or trial on such conditions as the Court thinks reasonable.

(3) An order may not be made authorising the evidence of a witness to be given by affidavit where it appears to the Court that another party bona fide requires the production of the witness for cross-examination, and that the witness can be produced.

2 Documentary evidence

2. (1) Documents put in evidence must be marked by an officer of the Court.

(2) Nothing in sub-rule (1) requires or authorises any marking on an original will which has not been admitted to probate.

(3) Subject to any direction of the Court, the party who tendered any document in evidence is entitled to the return of that document.

3 Deposition evidence

3. In any case where it appears necessary in the interests of justice, a Court may order that a witness or other person be examined on oath and the order may permit a party to the proceedings to give the examination or deposition in evidence in the proceedings on such terms, if any, as the Court directs.

2 — SETTING DOWN FOR TRIAL

4 Notice of trial

4. (1) When an appearance and defence have been served and filed, the claimant may serve notice of trial (Form 49.01, Schedule C).

(2) Not less than ten days’ notice of trial must be given to the respondent and all other necessary parties, save that the parties may agree that a shorter notice period must apply.

(3) Notice of trial must be filed with the Clerk promptly following service, and a separate copy of the notice must be filed for each additional party.

(4) Unless otherwise requested by the party giving notice of trial, or otherwise directed by the Court, notice of trial operates to set the claim (including any counterclaim) down for hearing at the next available time following the expiry of the period mentioned in the notice of trial as is assigned by the Clerk.

(5) Unless the Court directs the Clerk otherwise, the next available time is at the next available sitting of the Court for civil business for the Court area in which the claim must be heard, at such time at which the claim comes on in its order in the list.

(6) In any case in which the parties are agreed that the claim (and any counterclaim) is ready for hearing, the notice of trial may include any request agreed between the parties for the hearing to be specially fixed (and any reasons for such request), provided that the notice of trial is accompanied by a letter from the opposing party consenting to the request.

(7) The Clerk may set down a claim (including any counterclaim) to which sub-rule (6) applies for hearing in accordance with any request, or may request the Court to give a direction in accordance with such request.

(8) The Clerk must notify the party who has served notice of trial of the time and place at which the trial is listed, and may do so by returning to that party a copy of the notice of trial with those details inserted. The party who has served notice of trial must promptly notify all other parties of the time and place at which the trial is listed.

(9) No notice of motion seeking discovery or further particulars may be issued by any party later than 14 days after notice of trial has been served.

5 Service of notice of trial by respondent

5. Where the claimant fails to serve notice of trial within ten days after the delivery of the respondent’s defence, the respondent may do so and may file the notice of trial in accordance with rule 4.

6 Application to dismiss

6. (1) If the claimant fails to serve notice of trial within ten days after the delivery of the respondent’s defence, the respondent may, instead of serving notice of trial in accordance with rule 5, apply to the Court by notice of motion to dismiss the claim for want of prosecution.

(2) On the hearing of an application under sub-rule (1), the Court may order the claim to be dismissed, and/or may make such other order, on such terms, as he or she considers just.

7 Papers for Court

7. (1) The party serving notice of trial must, at the same time as filing the notice of trial, file with the Clerk, for use by the Judge:

(a) a set of copies of the pleadings, including particulars, and any affidavits in the case, in chronological sequence;

(b) a set of copies of any correspondence relied on by either party, in chronological sequence;

(c) copies of any other documents directed to be filed, and

(d) where so directed for the time being by:

(i) the President of the District Court in respect of civil proceedings in the Dublin Metropolitan District, or in respect of particular categories of civil proceedings including the proceedings concerned, in the Court generally or

(ii) by a Judge permanently assigned to the Court district in which the civil proceedings were brought in respect of civil proceedings, or in respect of particular categories of civil proceedings including the proceedings concerned, in that Court district,

a completed case management questionnaire (Form 49.02, Schedule C).

(2) sub-rule (1) does not limit the ability of any party to rely on any document at the hearing.

3 — TRIAL

8 Hearing of claims together

8. The Court, if it considers it desirable, may order that two or more claims be tried together, on such terms as to costs as it considers just.

9 Hearing of counterclaim

9. (1) A counterclaim may be proceeded with separately.

(2) If a counterclaim is proceeded with separately, it must be treated as a claim, irrespective of whether the original claim in which the counterclaim was made is withdrawn, stayed, discontinued or dismissed.

10 Directions to witnesses

10. A witness who is not a party may be ordered by the Court:

(a) to leave the Court until his evidence is required; or

(b) to leave the Court after his or her evidence has been given; or

(c) to remain in Court after his evidence has been given, until the trial is terminated or adjourned.

11 Judgment

11. Judgment (which may be recorded in one of the Forms 49.03 to 49.08, Schedule C (49.03, 49.04, 49.05, 49.06, 49.07, 49.08), as appropriate, with such modifications as are necessary) may be given for one or more claimants, and against or in favour of one or more respondents (which may be recorded in Form 49.09, Schedule C, as appropriate, with such modifications as are necessary).

12 Adjournment

12. (1) The Judge may, if he or she thinks it expedient in the interests of justice, postpone or adjourn a trial for such time, and on such terms, if any, as he or she thinks just.

(2) sub-rule (1) does not limit any other power of the Court to adjourn.

13 Non-appearance at trial

13. (1) If, when a case is called in Court, the claimant appears, and the respondent does not appear, the claimant may prove his or her claim so far as the burden of proof lies on him or her.

(2) If, when a case is called in Court, the respondent appears, and the claimant does not appear, the respondent, if he or she has no counterclaim, is entitled to judgment dismissing the claim, but if he or she has a counterclaim, then he or she may prove the counterclaim so far as the burden of proof lies on him or her.

14 Ancillary orders as to payment

14. (1) When the Court has pronounced a judgment or made an order (or at any later time on notice being given to the opposite party), the Court may order the time or times when, and by what instalments, the debt or damages and costs of the judgment, or the amount stated in the order and the costs must be paid.

(2) If an order for instalments is made on pronouncing a judgment or making an order, no order for execution may issue against the respondent until after default of payment or default of some instalment according to the order.

(3) The Court may stay execution on foot of any judgment or order for such period and on such terms as the Court considers just.

15 Jurisdiction to give judgment or dismiss on the merits or without prejudice

15. The Court has full jurisdiction in all cases to give judgment on the claim, or to dismiss the claim either on the merits or without prejudice to the claimant’s right to proceed by a new claim notice.

16 Where a dismiss without prejudice is produced

16. If, when a case is called in Court, the respondent produces an order of the Court dismissing the same cause of action by the claimant against the respondent without prejudice, the claimant may not proceed with the case until the claimant has paid to the respondent the amount of costs due on foot of that order.

17 Cross judgments may be set off

17. (1) If:

(a) the Court makes cross judgments between the same parties; or

(b) there are at the same time unexecuted or only partially executed judgments of the Court between the same parties,

the Court may, on the application of either party, order that the judgments be set off against each other.

(2) If judgments ordered to be set off against each other are of unequal amounts, the Court may order that a judgment issue only on which the larger sum due, and that the judgment be issued or executed only for the sum which remains due after deducting the sum due on the other judgment.

18 Judgment by consent

18. (1) A respondent who is not represented by a solicitor or counsel, may consent to a judgment being ordered against him or her.

(2) A respondent who consents to a judgment must sign a consent, which must be proved either in open Court or by an affidavit verifying the execution of the consent.

(3) The Court may give judgment in accordance with the terms of the consent.

19 Order for recovery of rates and execution against goods in default of payment

19. (1) Where the Court makes an order for the recovery of rates, the Court may direct that the sum be paid either at once or by instalments.

(2) In an order to which sub-rule (1) applies, the Court may order that, in default of the sum being paid at the time and in the manner directed, the amount not paid be levied by distress and sale of the goods of the respondent against whom the order was made and by taking the money of the respondent against whom the order was made.

20 Interest

20. (1) A judgment for the recovery of a sum of money which (exclusive of costs and witnesses’ expenses) exceeds €190.46, carries interest on the sum at the rate per annum specified for the time being in section 26 of the Debtors (Ireland) Act 1840, until it is satisfied.

(2) Interest must be calculated from the date of the judgment unless the Court otherwise directs.

(3) A judgment for the recovery of a sum of money for an amount not exceeding €190.46 does not carry interest.

[SI 17/14]

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